Teen can be anonymous in suit over alleged defamation on Facebook: top court

09/27/2012 04:30 EDT
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Updated
11/26/2012 05:12 EST

CP

OTTAWA - The Supreme Court of Canada was widely praised Thursday for granting anonymity to a teenage girl so she can pursue a lawsuit over a bogus Facebook page that she says defamed her.

The ruling was welcomed as a necessary step in child protection in the Internet age, one that extends to victims of cyberbullying the same legal right to anonymity that is currently granted to sexual assault complainants, children in family law disputes and most accused criminals under the age of 18.

In a 7-0 ruling, the high court granted the girl's request to proceed with a lawsuit without revealing her name. The judges ruled that the girl is entitled to anonymity to prevent her from becoming a victim a second time.

But the court also rejected her request for a publication ban on the broader details of the defamation suit, as long as those details don't identify her to the public at large.

The decision provides a clear statement from the court that children are "inherently vulnerable — particularly when they're being cyberbullied in a sexualized way — and it is the duty of the courts to protect them," said Jane O'Neill, a lawyer for the girl's family.

"When balancing that against the media's right to access and the media's right to report on proceedings, it certainly weighs in favour of protecting the identity of the child."

The case made its way to the Supreme Court after the girl's family appealed a Nova Scotia Court of Appeal decision.

The girl, known as A.B. in court documents, was 15 when she and her family sought a court order compelling Internet service provider Eastlink to reveal the identity of the person who had allegedly set up the fake Facebook profile about her.

The fake profile used her picture, a slightly modified version of her name, and other identifying particulars. An accompanying commentary made unflattering comments on her appearance and included some sexually explicit references. The page was removed by the Internet provider later that month.

The lower court granted the order, but said she couldn't proceed with a defamation case anonymously because there is an open-court principle at stake. The appeal court agreed.

That was a mistake, Supreme Court Justice Rosalie Abella wrote in Thursday's decision.

"In my view, both courts erred in failing to consider the objectively discernable harm to A.B.," she wrote.

The Halifax Chronicle Herald and Global Television originally opposed the idea of a publication ban. Global's involvement in the case ended in 2010.

"The media has a different perspective. They want to get the facts out to the public," said Queen's University law professor Arthur Cockfield.

"In terms of the balancing act of different interests at play, the court is clear that it's the privacy interests of this young person that are paramount."

Ottawa lawyer Richard Dearden, a defamation specialist, said the ruling properly balances the "open court" principle with the need to protect children and not discourage them from seeking justice.

"We're not living in the Wild West where people can defame others or cyberbully people with impunity. This case will instill some responsibility in some people who publish on the Internet."

Abella said there's no reason for a publication ban on the whole suit.

"She should be entitled to proceed anonymously, but once her identity has been protected, I see no reason for a further publication ban preventing the publication of the non-identifying content of the fake Facebook profile."

UNICEF Canada, an intervener in the case on behalf of the girl's family, welcomed the ruling as a step towards ending the despair that young victims of online bullying have been forced to endure.

Marv Bernstein, UNICEF's advocacy adviser, said the ruling sends a message to victims that they can pursue justice without humiliating themselves publicly, while it puts bullies on notice that they can be pursued in the courts.

Bernstein said the law already protects the identity of victims in sexual assault cases, while there are publication bans under the Youth Criminal Justice Act that extend to criminals and their victims. Children's identities are also protected in child protection proceedings, family law proceedings and immigration law proceedings.

"It seemed to us that the courts in Nova Scotia had forgotten that this was a child, and applied an adult standard to the court proceeding, and didn't seem to take into account the best interest of the child," said Bernstein.

"It didn't balance the open court principle and freedom of the press on one side, with the best interest of the child, with a child's right to privacy."

It's vital to protect the victims of online bullying, Abella wrote.

"In addition to the psychological harm of cyber bullying, we must consider the resulting inevitable harm to children — and the administration of justice — if they decline to take steps to protect themselves because of the risk of further harm from public disclosure."

She said the interests at stake are clear:

"The girl’s privacy interests in this case are tied both to her age and to the nature of the victimization she seeks protection from. It is not merely a question of her privacy, but of her privacy from the relentlessly intrusive humiliation of sexualized online bullying."